FTA and DV Re-Arrests 06

58 Statutorily, the courts have more options to reduce failure to appear than to reduce re-arrest. Releasing defendants on bail rather than on recognizance and setting higher bail are permissible methods for insuring the defendant’s return to court.

However, greater use of bail, either at arraignment or after arraignment, is unlikely and impractical. Many victims do not participate in the prosecution of DV cases and they are unlikely to support greater use of bail. Because most DV cases are unlikely to end in conviction and a jail sentence, judges are reluctant to set bail in an amount that will detain the defendant. If bail were used more often, many DV defendants would be detained who would not engage in pretrial misconduct if released and detention costs would increase significantly. Finally, greater use of bail may not be an effective way to reduce failure to appear. In short, changes in bail-setting practices significant enough to reduce pretrial misconduct among DV defendants are unlikely.

While increasing the general reliance on bail in DV cases does not appear to be feasible, there are other changes courts can make to reduce pretrial misconduct.

Setting conditions of release, particularly by requiring supervised release for some DV defendants, may be an effective way to address concerns about both FTA and pretrial re-arrest for new DV offenses. The oversight provided by a supervised release program during the pretrial period might also reduce recidivism in the post-disposition period.

Prior CJA research has shown that the duration of court oversight is associated with lower rates of post-disposition re-arrest (Peterson 2003a, 2004). Some DAs extend the duration of court oversight as a means of monitoring DV defendants during the pretrial period (Peterson and Dixon 2005). Increasing the intensity of pretrial oversight, through the use of a supervised release program, might provide added benefits in terms of reducing post-disposition re-arrests as well as pretrial re-arrests.

Additional changes to reduce pretrial misconduct by DV defendants would require legislative action. Allowing preventive detention for defendants who pose a risk to a victim, a witness, or the community would enable the courts to base release and bail decisions on these risks. This would allow courts to detain, or require supervised release for, high-risk defendants. Such legislation is proposed from time to time, but has not been passed (Ross and Gendar 2005).

Another possible legislative action would involve a change in the courts’ authority to revoke bail or recognizance when a TOP is violated in the pretrial period. New York State law currently authorizes the court to revoke bail or recognizance and detain defendants charged with intimidating a victim or witness (Marks et al. 1996). This is a situation where the court can legally engage in preventive detention. Under this limited circumstance, defendants can be remanded for 90 days or until the re-arrest charges are reduced to a misdemeanor (whichever is shortest). In our dataset, only a handful of DV defendants were re-arrested and charged with intimidating a victim or witness.

However, about 12% of released DV defendants were charged with violating an order of protection, and an additional 5% were re-arrested during the pretrial period and charged with violating an order of protection (data not shown). If courts were permitted to revoke bail or ROR for some of these DV defendants, or to assign them to a supervised release program, pretrial misconduct, and particularly pretrial re-arrest for a new DV offense,